Two recent decisions may make it more difficult for a regulated party to avoid the issue of having to deal with multiple regulators on the same issue. In Baykeeper v NL Industries (3rd Circuit, October 3, 2011), environmental organizations brought suit against a manufacturer of pigments under the Clean Water Act (33 USC 1365 (a)(1)) and the Resource Consevation and Recover Act (42 USC 7002(1)(1)(B)) seeking remediation of the Rariton River. The defendants asked the federal district court to abstain from hearing the case based on the doctrine of primary juristiction, which holds that a federal district court may abstain from deciding a case, where, under the existing regulatory scheme, the issues “have been placed withn the special competence of an administrative body.” The district court agreed to abstain, reasoning that the issues were within the primary jurisdiction of the New Jersey Department of Environmental Protection (NJDEP) and the Third Circuit reversed, reasoning that even though the defendands had worked with NJDEP on issues related to the investigation and remediation of the area, that did not mean that NJDEP had special expertise or primary jurisdiction over the issues that required the court to abstain and forward the issue to NJDEP.
Similarly, in City of Colton v American Promotional Events, Inc, (C.D. Cal., August 2011), the cities of Rialto and Colton brought suit to require the former owners of an ammunition storage facility to clean up the facility. The defendants moved to dismiss the RCRA claim based on the provision of RCRA that bars private party suits if the Environmental Protection Agency (EPA) is “diligently prosecuting an action .” EPA, at the time of the suit, was in litigation with some of the parties with regard to remediation of a portion of the site. The court concluded that the suit could proceed because despite the significant overlap, the suit involved parties and contamination not addressed in the EPA litigation.
From the perspective of the regulated community, having more than one regulator imposing requirements on the same activity can increase the costs of compliance and can place the regulated party in the bind of facing contradictory requirements. As one of our client’s often says “we don’t want to be the meat in that sandwich.” From the perspective of regulatory policy, it wasteful and ineffecient to have more than one regulatory agency addressing the the same issue. One of the more difficult issues for an environmental attorney, trying to move toward a rational resolution of environmental issues, is knowing which agency to deal with. Once that is determined, one needs to determine how to deal with those would who seek to impose obligations beyond the obligations imposed by the primary agency. Sometimes the best course is to merely step back and wait for the various regulators to work out their differences. Other times, the regulated party needs to engage both regulators separately in order to move toward a rational resolution. In any case, these two recent decisions make the job more difficult, because neither court was concerned about the significant overlap between the regulators.